Ruth M. Leibig was an active and self-sufficient 78-year-old, living in a senior complex operated by Somerville Senior Citizens Housing, Inc., a non-profit organization, in New Jersey. On May 16, 1994, she was found in her bathtub. Her arm had wedged behind the “grab bar” installed in the bathroom to help her get in and out of the tub, and she had been immobilized in that position for three days.

Ms. Leibig did not survive her ordeal. The pressure on an artery in her arm had cut off all circulation, and her arm had become gangrenous. She lapsed into a coma shortly after she was found, and died two days later. The cause of death was listed as septicemia, caused by the gangrene.

The estate brought a lawsuit against Somerville Senior Citizens Housing, alleging that the grab bar had been installed too far away from the wall, and that the housing complex had inadequately supervised Ms. Leibig. The trial court dismissed the lawsuit after deciding that Somerville Senior Citizens Housing was a public entity, and that it should enjoy the same immunity that would protect the state itself from litigation based on negligent building design.

Ms. Leibig’s estate appealed to the Appellate Division of the New Jersey Superior Court. The appellate court reversed the dismissal, and reinstated the estate’s claim. Basically, the court decided that Somerville Senior Citizens Housing was not a “public entity” and therefore should be held to the same standard as other defendants in determining whether it negligently designed or installed the apparently dangerous grab bars.

If Ms. Leibig’s housing development had been designed and built by the State of New Jersey (or a political subdivision), she and her estate would have been unable to recover for her injuries. In fact, the project was completed using government funds and loan guarantees, and was based on plans prepared by the New Jersey agency responsible for senior citizen housing projects.

Although Somerville Senior Citizens Housing is a non-profit organization, and although government funds and control were involved in the construction of the project, the appellate court decided that there was insufficient evidence available to show that the builder was really a government agency. That decision was partly based on the lack of information (and conflicting information) provided to the court. In addition the court noted that immunity would only be available to a state agency if it could show that the building was built in accordance with the approved plans; in fact, the grab bars in this case were further from the wall than indicated in the original plans. Estate of Leibig v. Somerville Senior Citizens Housing, Inc., Nov. 24, 1999.